Texas recently won a major battle in its congressional and state-legislative redistricting fight. On January 20, the Supreme Court threw out interim maps that had been created out of whole cloth by a three-judge panel in San Antonio, and that, in addition to heavily favoring Democrats, basically ignored the plans drawn by the state legislature. The war goes on in federal court in Texas and the District of Columbia, but the decision was a defeat not only for the NAACP, the League of United Latin American Citizens (LULAC), and other seekers of racial spoils, but also for Eric Holder’s Justice Department.
This case demonstrates the absurdity and fundamental unfairness of Section 5 of the Voting Rights Act (VRA), the supposedly temporary, emergency five-year provision passed in 1965, as well as the way Section 2 of the VRA has been perverted by so-called civil-rights organizations, DOJ, and the courts. They have used the law to make racial gerrymandering the dominating factor in redistricting, and “proportional representation” almost a legal mandate for states that want to avoid expensive and protracted litigation.
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Texas is one of nine states covered in whole by Section 5, which essentially places it in federal receivership. Texas has to get administrative approval from DOJ or a federal court in the District of Columbia before it can implement any changes in its voting laws, including its new redistricting plans. Section 5 was supposed to last only five years, and was passed when there was widespread, systematic, official discrimination in parts of the South — a blight that has long since disappeared.
Yet in 2006, Congress renewed Section 5 for another 25 years, cementing in place the continued discriminatory treatment of states under the law. Texas filed a lawsuit in D.C. seeking Section 5 clearance for its redistricting plans under a legal standard that places the burden on the state to show there has been no disparate effect on racial minorities. Texas must prove that it has preserved the status quo — that it has not reduced the number of majority-minority voting districts in Texas. Thus, Section 5 forces states to explicitly take race into account when drawing districts.
At the same time, Texas was sued in federal court in San Antonio under Section 2 of the Voting Rights Act by groups claiming that the state hadn’t created enough new majority-minority districts. Section 2 is the permanent, nationwide provision that prohibits “denial or abridgment of the right” to vote based on race. Section 2 was originally passed to get rid of barriers to registration and voting. Since such barriers no longer exist, it has devolved into a statute used for vote-dilution lawsuits in which plaintiffs such as LULAC claim that a state has not created enough districts where racial and ethnic minorities are a majority of the voters.
In other words, Section 2 is used against states that don’t take race sufficiently into account when they are drawing political district lines. So the statute that was hailed by civil-rights organizations in the 1960s as necessary to end the “sordid business [of] divvying us up by race” in the voting process (as Chief Justice John Roberts said in a prior Texas case) is today used by those same organizations to ensure the sordid divvying up by race in redistricting.
Because Hispanics and blacks make up three-quarters of the population growth of Texas since 2000, LULAC and others are claiming that they should have gotten at least three of the four new congressional districts that Texas received after apportionment. This argument is in direct conflict with a warning in Section 2 that the statute does not establish “a right to have members of a protected class elected in numbers equal to their proportion in the population.” However, that provision hasn’t prevented plaintiffs or DOJ from making such claims under the veneer of “disparate impact,” wrongly equated with discrimination, or courts from finding against states based largely on such claims.
In Georgia, the maps drawn by the legislature were recently approved by DOJ. One factor in DOJ's action was the state's constitutional challenge to Section 5.
Hans' article doesn't mention something that most people, even reasonably well informed people, do not know. The 1965 act does not apply to named jurisdictions: it applies to jurisdictions where the voter turnout was below a certain threshold IN 1960 AND 1964. (In Georgia, Texas and other places few blacks were allowed to register back then, so the turnout was below the threshold, as a % of persons old enough to vote.)
OK, fast forward to 2012. Imagine the government's lawyers in court trying to defend a system that interferes in the affairs of some states and not others based on what happened in those states half a century ago.
Georgia's challenge was dropped when the maps were approved. It will be interesting to see how Section 5 holds up. Surely other jurisdictions will mount challenges. Also, jurisdictions will seek exemption from Section 5. There are several newly incorporated cities in Georgia. At least one has sought and received exemption. There was no discrimination there in the 60s because there was no "there" in the '60s.
Last Saturday's NYT had an indignant editorial on just this topic: the unanimous Supreme Court decision throwing out a lower court-imposed redistricting scheme in Texas that would have created four more Democratic seats in the House. The decision sends it back for rework. The Times argues that minorities are unfairly underrepresented and that left to themselves the Republican state legislature will tilt the field toward their party.
Leaving aside the question of Manhattan editors presuming to dictate to Texans, perhaps they ought to address gerrymandering nearer to home. I note that for the six New England states, which in aggregate have 22 seats in Congress, only one state (New Hampshire) has any Republican representatives at all, with two. Although 43% of the votes cast for US House seats in New England in 2010 were cast for Republicans, only 9% of the delegations are Republican, an under-representation of 7 seats. Let’s take New York itself: it has 29 seats currently. After the 2008 election, all but two of these were held by Democrats. Democrats retain 21 of these after the 2010 elections—72% of the seats, though only 58% of the aggregate votes were cast for Democrats. (In 2008, of course, the Republicans presumably won many more votes than their 7% share of the delegation would indicate.) Despite a 6 seat gain in 2010, Republicans remain 4 seats under-represented in New York.
Meanwhile, in backward, benighted Texas, after the 2010 elections the Democrats got 9 of the 32 seats (28%) for their 31% share of the total Congressional vote. They’re under-represented by less than a single seat. Perhaps there’s something to the Times’s recurring condescension to flyover country: compared to the artful legislators of Albany and Boston, the bumpkins in Texas seem ineffectual.
You can certainly find states with all- or nearly all-Republican delegations as well. (And this isn't an endorsement of at-large or proportional representation, which have had destructive results in other countries.) But that isn’t the point: gerrymandering is bipartisan. Rather, the point is how the NYT and media like it so often (and so huffily) couch opinions like this as matters of fairness and principle when in fact neither fairness nor principle motivate them—only partisan expediency
'Stacking the deck' in favor of a group due to race or ethnicity only perpetuates resentment. The dubious Constitutionality of the Voting Rights Act is one thing but continuing it long after it is necessary and directing it toward one region of the country stands as testimony to the fact that the Constitution is no longer a relevant document in this country. The framers feared abuse and so structured 'checks and balances' but they never contemplated an electorate that would tolerate that abuse. No piece of paper can guarantee rights if you ignore it.
Yes, but Texas IS backward. Until Texas once again declares independence and becomes a republic (a move I would support), it will need a federal babysitter if it is to be part of the United States.
Regional bigotry is ugly. What a twisted self-image you must have, to imagine people reading your ridiculous comment, Mr. Taylor, in anything other than revulsion.
Meanwhile in Illinois, the state is redistricting due to the state losing a seat in the House. The vast majority of population loss is the city of Chicago since few want to live in bombed out south and west side ghettos, or they cannot afford overpriced north side hipster neighborhoods. Chicago lost over 200,000 people in the last census alone.
Downstate and the suburbs (in spite of all the liberal publications claiming the end of the suburb as we know it) actually grew in spite of the rotten business and tax climate in Illinois.
If common sense prevailed in Illinois, the lost seat would be lost where the population was lost. Namely the City of Chicago. Subtract one district from the city and be done.
But that not how things "work" in Illinois, and it is showing of why Illinois is circling the bowl. Illinois is the king of gerrymandering, and has done so for decades now. It is entirely intended to pull as much power into the Democrat Party in the city of Chicago and take power from suburban and downstate Republicans (Illinois believe it or not, probably is a Republican leaning state). So you have the weirdest shaped districts that you have ever seen.
This is how it "works". The "base" of the district is in the city, drawn with some career politician in mind. You know the one, yes the guy who should have been thrown out of office and jailed decades ago. His district has just enough people in it in the city to keep it reliably Democrat, then has a weird little tail that goes around the suburbs to "cover" it. In some places in the suburbs the district can be only a few blocks wide.
If you live in that tail of the "district" you really aren't represented by anyone. Your "representative" is miles away in the city, they may as well be on the moon. He thinks he represents a inner city district, only problem is, you don't live in the inner city. So your issues aren't relevant to him. He talks about things like "social justice", your problems are the high property taxes. As the population of the city decreases and the suburbs increases, the little tails go deeper into the suburbs. That is what is happening now, as these tails go deep into Du Page County (so this will someday no longer work as Du Page is majority Republican). Democrats are trying their best to eliminate another Republican suburban district (and will probably succeed), even though the population loss is entirely in Democratic areas. All the south suburban Republican districts are no more already, so they will have to work west, a much harder job.
Illinois' Republican party is weak and useless, so it has contributed to this problem by allowing it (OK, the federal courts and government haven't helped either). In spite of downstate and the suburbs being overwhelmingly Republican, the state has been miss run by Chicago Democrats. The city has about 2.5 million people. The suburbs have about 6 million. Downstate has the rest, about 3 million.
So if we went by population with 18 districts, Chicago should have 4 districts, the suburbs should have 10 districts. Downstate 4 districts. However the way it is with the gerrymandering, it gives Chicago about 9. There is a district centered on the south side that has rotten inner city neighborhoods to farm fields over 50 miles from the city limits (with suburbs stuck in between). Do you really think that politician has any idea how to represent a farmer?
Gerrymandering is a terrible idea that needs to go. I am not just saying so because it hurts Republicans, it hurts all voters. It was a stupid idea to increase minority districts (the excuse used) by disfranchising the majority. Suburban areas are basically unrepresented, downstate is not much better. The problems of the city have spread state wide making Illinois a place people are leaving.
Districts were intended to represent population not individual groups. Its frankly unconstitutional.
There's a perfect example of what Rich B is talking about in Massachusetts in the district redrawn to keep Barney Frank in power. Thank God he's leaving.
The bigger issue here is the Voting Rights Act itself and its unjustified bias toward modern, southern states. This is the 21st Century, not the 19th. If we are going to look to the past the proper date would be 1787. That was the day the Constitution was adapted, laying out the framework for a federal system based on a limited central government with those powers not specifically granted to the national government reserved for the states and the people. Not only is it not 1860; it is not 1960, either, and it both time to acknowledge progress and start treating states equally.
This is an issue that reflects not just on redistricting but on election law as well. Juan Williams' question about the SC voter law in the first South Carolina debate implied that any action taken by a state with a "history of denying blacks the vote," no matter how evenly the action is applied and how obviously it is intended to protect the integrity of elections, is automatically suspect. The fact is that most of the original 13 states did not allow blacks to vote, and many of the northern and western states which subsequently joined the union also denied or suppressed black voters.
Yet, 151 years after the War Between the States, 56-years after Rosa Parks refused to vacate her seat on a Montgomery, AL bus, 47-years after the passage of the Civil Rights Act and 46 years after the adaption of the Voting Rights Act, Texas and other southern states still find themselves being treated like untrustworthy entities incapable of conducting their own affairs without bias. It is both an insult to the south and southerners and an unwarranted and wholly unjustified assault on the entire region for the federal government to continue treating southern states as if they were still operating under Jim Crow laws. As it stands, the only people being treated under the law as second-class citizens are Texans and residents of other southern states.
In addition to its unwarranted interference in redistricting, the Obama Justice Dept. has also challenged the strong Texas voter ID bill initiated by Governor Perry and passed with overwhelming support of the legislature, which was an entirely reasonable measure designed to eliminate fraud. It imposes no particular burden on any specific demographic, including ethnic minorities, and would do nothing but help insure that legitimate votes are not diluted and undermined by illegitimate ones.
The administration’s use of the Voting Rights Act to attack this law and others like it is has nothing to do with justice or with protecting minority votes and everything to do with the Democrat Party’s historic reliance on a certain measure of voter fraud to win close elections. The same motivations apply to the redistricting case. The redistricting plan passed by the Texas legislature would have succeeded in UN-GERRYMANDERING an electoral map drawn to elect Democrat congressional candidates in numbers far in excess of the actual vote they receive. That was also true in the case of the redistricting measures supported by Tom Delay, who became the target of a famously partisan prosecutor for having the temerity to suggest that the will of the electorate be accurately reflected in congressional elections.
The Voting Rights Act had its place and its time, although it should have always been equally applicable to all states. But it is beyond past time that southern states be punitively singled out for special enforcement, based on what is rapidly becoming ancient history. Otherwise, more and more Texans – including this one -- are going to look back, not just longingly and nostalgically but seriously at another date – 1836 – when we became an independent republic. Given the direction of the rest of the country, an amicable divorce had already begun to look more and more attractive. Throw abuse into the equation and the current arrangement only becomes that much harder to swallow.
I'm happy to see that one poster would be more than happy to see us leave. I look forward to his support, and to selling him Texas oil and natural gas; although at a greatly increased price.
The solution isn't for Texas to leave the union. The solution is for the rest of the country to follow the Texas lead.
You're right in assuming that Northern liberal elites are bigoted against Southerners. I'm ashamed to admit that growing up in the liberal Northeast the impression given of the South was of a bunch of ignorant, racist, hicks who never finished High School. Country music was considered low brow. It's all part and parcel of the contemptuousness of liberalism toward anyone who doesn't follow its edicts. Thank God I did a lot of reading when I was young. I spent three days a year skipping school to go to the library and correct whatever misinformation I was taught in school. Liberals are still the biggest bunch of racists in the country. Their gerrymandering schemes prove it.
Good analysis. I would also point out that 46 years ago the leaders most responsible for implementing and enforcing Jim Crow laws were members of the Democratic Party. Members of the Democratic Party (including Albert Gore) also filibustered the Voting Rights bill. While the elites willingly accept the hypothesis the Democrats have now changed since 1965 and reformed into a party that protects minorities, they refuse to concede that the overall attitudes in these southern states have likewise changed and are no different (regarding fairness in elections) than any other state.
Thank you for this fine essay, Mr. von Spakovsky. It's a shame NRO took a full week to recognize the importance of last Friday's SCOTUS decision -- it continues to stun me that a net swing of as many as four congressional votes can't make the radar screens of either the mainstream media or the conservative chattering class! -- but I commend you for also putting this into the bigger-picture context. It's time, and past time, to stop presuming, as a matter of federal law, that today's Texans are racist on no more evidence than that 1965's Texans were racist.
It's time to repeal Section 5's preclearance requirements. Failing that, it's time for the SCOTUS to recognize that counting heads by race under Section 5 can no longer be justified as a remedial measure for past discrimination, and therefore that it runs squarely afoul of the plain language and intent of the Fourteenth Amendment.
"It's time, and past time, to stop presuming, as a matter of federal law, that today's Texans are racist on no more evidence than that 1965's Texans were racist."
If you were reading my (Texas) hometown newspaper, you would see that there are a LOT of racists in Texas ... but they're a *different* race than the 1965 ones.
Which just goes to show why the statutory racial head-counting needs to be eliminated. It doesn't change fast enough to reflect the current reality.
